THE CRITICS OF THE AUTHORITIES IN AZERBAIJAN ARE DRUG ADDICTS OR HOOLIGANS
Analysis of violation of law during Bakhtiyar Babasov’s judicial proceedings
Criminal Collegium of the Baku Court of Appeal
Case № 4(103)-238/2023
16 March 2023
Presiding judge: Ramin Qaraqurbanli
Defender: Zubeyda Sadiqova
Defendant: Bakhtiyar Babasov
With the participation of Elshan Hasanov, an investigator from the Narimanov District Police Investigation Department, and Elvin Mammadli, a representative from the Narimanov District Prosecutor’s Office
On 9 March 2023, a member of the Muslim Unity Movement, Bakhtiyar Babashov, was detained as a suspect by the Baku Narimanov district policemen. According to the official version, in the course of personal search it was found 1 cellophane bag containing 40.704 grams of heroin in his possession.
Initially, on 10 March 2023, the Narimanov District Police Department initiated a criminal case against Bakhtiyar Babashov under the Article 234.1 (Illegal purchase, storage, manufacturing, processing, transportation without a purpose of selling of narcotics or psychotropic substances in a quantity (amount) exceeding necessary for personal consumption) of the Criminal Code of the Azerbaijan Republic.
However, on very same day, the criminal case against Bakhtiyar Babashov was reclassified to the Article 234.1-1 (Illegal acquisition, storage, manufacture, processing, transportation without purpose of sale of narcotic drugs or psychotropic substances in significant quantities, committed in large amounts) of the Criminal Code of the Azerbaijan Republic.
On 11 March 2023, Bakhtiyar Babashov was found guilty under the Article 234.1.-1 of the Criminal Code of the Azerbaijan Republic by the Baku Narimanov District Court. In accordance with the Court ruling of 11 March 2023, against B.Babashov it was chosen a preventive measure in the form of detention for the period of 4 months.
Bakhtiyar Babashov’s defence, disagreeing with the Court ruling on the chosen measure of restraint, appealed to the Baku Court of Appeal. He admitted the incriminated deed due to threats to his family and under the pressure exerted by the officers of the Baku Narimanov District Police Department. The defence also demonstrated that Bakhtiyar Babashov signed the blank sheets of paper with no lawyer in attendance; he was not provided legal assistance, and at the time of detention B.Babashov was not given the opportunity to notify his family and relatives about his arrest. In addition, the video recording of the search was carried out about 4-5 hours later. The lawyer also pointed out that B.Babashov is being charged for the first time and he has a permanent place of residence. He has never used drugs and is a deeply religious person. The defence also stated that there were no grounds listed in the Article 155 of the Azerbaijan Republic Criminal Procedure Code to impose a preventive measure in the form of arrest.
The defendant, Bakhtiyar Babashov, asked the Court to satisfy the appeal filed by his lawyer, whilst the representative of the Prosecutor’s Office and an investigator insisted to leave the appeal without satisfaction.
On 16 March 2023, the Criminal Collegium of the Baku Court of Appeal issued a ruling: to dismiss the appeal and leave the ruling of the Baku Narimanov District Court of 11 March 2023 on choosing a preventive measure unchanged.
Commentary by expert lawyer:
The court verdict is unlawful and unjustified.
There are gross procedural violations in the case of Bakhtiyar Babashov. As mentioned above, the defence pointed out in its appeal that B.Babashov had signed the blank sheets, he had not been provided with the right to defence and the right to immediately inform his family of his detention. These are typical violations committed by the bodies conducting criminal proceedings. In respect of Bakhtiyar Babashov, it were violated his fundamental rights.
The Article 155 of the Code of Criminal Procedure of the Azerbaijan Republic stipulates the grounds for applying a preventive measure. The list of grounds is rather limited and consists of the following provisions:
- hidden from the prosecuting authority;
- obstructed the normal course of the investigation or court proceedings by illegally influencing parties to the criminal proceedings, hiding material significant to the prosecution or engaging in falsification;
- committed a further act provided for in criminal law or created a public threat;
- failed to comply with a summons from the prosecuting authority, without good reason, or otherwise evaded criminal responsibility or punishment;
- prevented execution of a court judgment.
The limited list of grounds means that Courts, issuing rulings on the imposition of a preventive measure must refer only to those grounds specified in the Article 155 of the AR CCP. Moreover, these grounds must be substantiated and the Court rulings must contain individualized arguments.
The Decision of the Plenum of the Azerbaijani Republic Constitutional Court “On Interpretation of the Article 157.3. of the Criminal Procedure Code of Azerbaijan” from 9 July 2010 states that the Article 155.3 provides two grounds for application of a preventive measure in the form of arrest or an alternative preventive measure. The first ground is
“the act imputed to the accused person must stipulate a punishment of deprivation of liberty for a term exceeding 2 years (Article 155.3.1. of the AR CCP)”. The second ground is “to prevent the unlawful behaviour of a person accused of committing an offence punishable by deprivation of liberty up to 2 years”.
According to this Decision, an unlawful act means committing the acts specified in the Article 126.96.36.199 – 155.1.3 of the Code of Criminal Procedure of the Azerbaijan Republic, namely:
- concealment from the body conducting the criminal proceedings;
- interference in the normal course of the case during the preliminary and judicial investigation by exerting unlawful pressure on the persons involved in the proceedings, concealment or falsification of materials meaningful for the criminal prosecution;
- repeated commission of an act stipulated by the criminal law or creation of a threat to the public.
In accordance with this Decision, the application of a preventive measure in the form of arrest or an alternative preventive measure, except the cases specified in the legislation, is inadmissible.
Thus, as stated above, the Constitutional Court of Azerbaijan has noted that when applying a preventive measure, the presumed punishment of deprivation of liberty for a term exceeding 2 years is essential. Although the National Criminal Procedure Law provides for this provision, the case law of the European Court of Human Rights (ECHR) fully refutes it.
Thus, the ECHR judgment in the case of Wemhoff v. Germany of 27 June 1968 it was written:
“Whilst a grounded suspicion that an accused has committed an offence might justify an initial period of detention, in order to hold an accused in detention beyond this initial stage, it is necessary for the State to comply with two cumulative criteria. Although, the risk that the accused might abscond from the jurisdiction of the court can not be determined solely by reference to the gravity of the charged offences or the possible severity of sentence faced by the accused; the court must examine all relevant factors, for example, if it is possible to obtain guarantees in the form of a bail bond, or whether the accused has social or financial connections in the State in question which render it unlikely that he would wish to flee from the jurisdiction of the court.”.
Any ground set in the investigator’s application for arrest must be substantiated and contain specific arguments in favour of each of them. The Court judgement refers to several grounds, but does not provide a single argument justifying the imposition of a preventive measure in the form of arrest. The grounds are quite serious, each of them the European Court interprets in detail in its judgments.
Thus, the judgment of the European Court of Justice in the case of Letellier v. France of 26 June 1991 states:
“Inadequacy of court supervision: where only remaining reason for continued detention is danger of accused’s absconding, he must be released if he is in a position to provide adequate guarantees that he will appear for trial, for example by lodging a security – indictments divisions did not establish that this had not been the position in case under review.
Preservation of public order: by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time – factor which might therefore, in exceptional circumstances, be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence – however, this ground can be regarded as relevant and sufficient provided only that it is based upon facts capable of showing that detainee’s release would actually disturb public order – in addition detention continues to be legitimate only if public order remains actually threatened – indictments divisions assessed need to continue the deprivation of liberty from purely abstract point of view, taking into consideration only gravity of offence.”.
The Paragraph 46 of the above judgement is said “When the only remaining reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, he must be released if he is in a position to provide adequate guarantees to ensure that he will so appear, for example by lodging a security”
One of the grounds indicated in the court judgement is interference in the normal course of the investigation but, as in the previous cases, there is no specific argument. The judgment of the European Court in the case of Kluth v. Belgium states that
“The Court is at ease with the fact that the authorities must keep a suspect in jail, at least at the beginning of an investigation, in order to prevent him from obstructing the enquiry, particularly when it is (…) a complex case requiring complex and extensive investigations. However, the mandatory requirements of the investigation are not enough – even in a case such as this one – to justify such detention: normally, the danger decreases over time, as the investigation is completed, the evidence is recorded and the verifications are made.”
The Paragraph 40 of the mentioned Judgment also says,
“According to the Court, the gravity of the charge may lead the judiciary to remand the suspect in pretrial detention in order to prevent him or her from attempting to commit further offences. It is also necessary, among other preconditions, that the circumstances of the case, and in particular the previous activities and personality of the offender concerned, make the risk reasonable and the measure adequate”.
It should be recalled that the criminal offence imputed to B.Babashov consists of only one episode, it appears to involve a small number of people, and it does not require any additional investigation or arrangements of additional, complicated and comprehensive expertise.
As for the reason of the risk of committing a new offence, in this case the court did not provide any specific arguments either, which would prove this fear. This is what the European Court’s judgements have to say in this respect,
“As regards the fear of reoffending, references to the previous activity are not always sufficient to justify a refusal of release”(Mutter с. France, 44).
We have considered all the grounds stated by the Court in its judgement. None of them is supported by any evidence, reasoning or argument justifying the imposition of the strictest preventive measure such an arrest. The long-term isolation of the accused from the society is not justified either by the National and International Legal Norms, or by the case-law of the European Court of Human Rights, that as a recommendatory character for the member states of the Council of Europe.
Thus, it is obvious that the arrest of Bakhtiyar Babashov is illegitimate, intended to penalise him for his active political and public activities.